Brown v Sweeney - [2022] NZHC 1553

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-002663

[2022] NZHC 1553

UNDER the Property Law Act 2007

IN THE MATTER

of an application on notice for orders of sale of properties pursuant to s 339 of the Property Law Act 2007

BETWEEN

DAVID JOHN BROWN

First Plaintiff

AND

TEDDY TRUSTEES LIMITED

Second Plaintiff

AND

DANA MAUREEN ANNE SWEENEY

Defendant

Hearing: 2 June 2022

Appearances:

D W Grove for the Plaintiffs

P J Stevenson for the Defendant

Judgment:

1 July 2022

JUDGMENT OF TAHANA J

[Summary Judgment - application for orders of sale of properties]

This judgment was delivered by me on 1 July 2022 at 12noon Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Vodanovich Law Ltd, Auckland D Grove, Auckland
Sellar Bone & Partners, Auckland P J Stevenson, Barrister, Auckland

BROWN v SWEENEY [application for orders of sale of properties] [2022] NZHC 1553 [1 July 2022]

Introduction

[1] This proceeding has a long history. The first plaintiff, Mr Brown is the father of the defendant, Ms Sweeney. On 30 November 2018, the plaintiffs (Mr Brown and Teddy Trustees Ltd) filed a claim pursuant to s 339 of the Property Law Act 2007 (the Act) seeking sale of properties that had been jointly purchased and co-owned with Ms Sweeney. This is an application for summary judgment seeking sale of the final property at 28A Sefton Ave, Grey Lynn (28A Sefton).

[2] Mr Brown says Ms Sweeney has agreed to 28A Sefton being sold by auction, which should now proceed. He seeks an interim distribution of funds received from sale of the other properties.

[3] Ms Sweeney opposes the application and says the Court should direct Mr Brown to purchase her share of 28A Sefton based on a valuation she has provided in support of her opposition. Since 2000, Ms Sweeney has lived, and continues to live, at 28A Sefton.

[4] I need to be satisfied that Ms Sweeney has no defence to the claims. The issues to be determined are:

(a)Should 28A Sefton be sold by auction or should Mr Brown be required to purchase Ms Sweeney’s share?

(b)If 28A Sefton is to be sold by auction, should Ms Sweeney be required to vacate 28A Sefton now and sign documentation to enable the sale?

(c)Should there be an interim distribution of funds held in trust from the sale of the other four properties and if so, in what proportions?

Background

[5] Given the claim that there is an agreement for sale by auction, I set out the background in full.

[6] In October 2020, the Court allocated dates for a judicial settlement conference (JSC) on 12 March 2021 and a three-day trial commencing on 23 August 2021.

[7]The outcome of the JSC was recorded in a minute dated 12 March 2021:1

The parties attended a judicial settlement conference today. They agreed in principle the key elements of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Sweeney

Details

AGLC: Brown v Sweeney [2022] NZHC 1553
Case: [2022] NZHC 1553
Decision Date: 1 July 2022

CaseChat Overview and Summary

This case involved a long-standing family dispute over the sale of jointly-owned properties. The parties were father David John Brown and his daughter Dana Maureen Anne Sweeney, who jointly owned a number of properties in Auckland, New Zealand. The dispute centred on the sale of the final property at 28A Sefton Ave, Grey Lynn. David and his solicitors sought summary judgment to sell 28A Sefton by auction and distribute the proceeds. Dana opposed the application, arguing that David should purchase her share based on a valuation she provided. The court considered whether Dana had any defence to the claims. The court found that the parties had agreed to sell 28A Sefton by auction and that Dana did not have a defence to that claim. The court ordered that 28A Sefton be sold by public auction by Barfoot & Thompson, with no reserve price, and that Dana should sign the necessary documents to enable the sale. The court also ordered an interim distribution of the funds held in trust from the sale of the other properties, with adjustments for mortgage repayment and court costs. The court directed the parties to file a joint memorandum in response to the expert's indication that additional information may change his report conclusions. The plaintiffs were awarded costs on a 2B basis.

The court was satisfied that the parties had agreed to sell 28A Sefton by auction, based on correspondence, memoranda and minutes of the court. While some details of the sale terms were not agreed, the key terms of an auction sale were. The court found that Dana did not have a defence to the claim for an auction sale. The court considered the relevant factors under the Property Law Act 2007 and found that the hardship to David of not enforcing the agreement outweighed the hardship to Dana. The court ordered the sale of 28A Sefton by auction and directed Dana to sign the necessary documents to enable the sale, with the Registrar to sign if she refused. The court also ordered an interim distribution of the funds held in trust, with adjustments for mortgage repayment and court costs.

Orders